The Colorado Supreme Court’s ruling, although disappointing to Colorado Republicans (particularly the residents of Douglas and Larimer counties) hardly comes as a surprise – Colorado Democrats carefully prepared the conditions for their victory on Congressional Redistricting as part of a long-standing strategy of sending the decision to the courts, where they have traditionally enjoyed a friendly venue.

The General Assembly amended this statute in 2010 to repeal the statutory prohibition, adopted in 2004, against the use of political data such as party registration and so-called “political performance” data. (Ruling at 43)

Despite having copious advance notice of Democrat intentions in regard to Congressional Redistricting strategy, Republican “leadership” was caught flat-footed and “steamrollered” in the courts:

Republicans may not even be able to decry the Colorado Supreme Court’s ruling as purely partisan (contrasting with the situation in the 2003 Salazar v. Davidson congressional redistricting case) or an example of unmitigated judicial activism, since the statutory changes (enabling consideration of purely political factors by the courts) and selective use of testimony may have provided sufficient legal “cover” for the court’s ruling majority to affirm the lower court’s ruling – aside from that pesky constitutional provision (Article V, Section 44) mandating Congressional Redistricting as a legislative, not judicial, responsibility in the first place.

Final judgment on the legal merits of the Colorado Supreme Court’s decision in this case (along with knowing the vote count) will have to wait, pending release and review of the actual written ruling (expected in the coming weeks).

In any event, the boundaries of Colorado’s Congressional districts are now set for the next decade – there is no further appeal from the Colorado Supreme Court’s ruling in this case.

Irrespective of one’s preferences on the congressional district maps, the negative repercussions of manipulating the redistricting process to impose an outcome via the courts are severely damaging to public confidence in our institutions of state government – both legislative and judicial. Legislative abdication of constitutionally-mandated responsibilities reinforces public perception of politicians as feckless and irresponsible (not without reason).

Perhaps more importantly, the intentional politicization of the judiciary – increasingly seen as acting as just another category of politician, distinguished from the other branches only by a unique mode of dress (black robes) – is corrosive to our institutions, and undermines the sanctity of the rule of law.

Clear The Bench Coloradowill, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Thursday’s oral arguments before the Colorado Supreme Court, in which each side had 30 minutes to make their case, were recorded and posted online shortly after the hearing.

Unlike the challenges to the state legislative district maps (which resulted in the maps being rejected by the Colorado Supreme Court and remanded back to the Colorado Reapportionment Commission), which revolved around clear and straightforward constitutional criteria, the arguments in the Congressional Redistricting case dealt with much more esoteric issues of case precedent & standards of legal review, making a prediction of the outcome much less certain.

Attorney Richard Westfall (representing the Hall plaintiffs – the Republican parties to the original case) opened by stating “the crux of this appeal is whether the trial court is free to disregard decades of precedent in amending congressional districts this cycle.” He outlined the basis for the appeal on two main points:

It was ‘manifestly unreasonable’ for the trial court to ignore existing ‘communities of interest’ regarding Douglas and Larimer counties

When a court draws congressional districts, there are judicial standards that should be followed – and when they are not, a ‘de novo review’ of the record is required

Westfall then addressed the disparate application of “agricultural communities of interest” in the case of Douglas and Larimer counties – held by the trial court to be paramount in tying Douglas, yet negligible in linking Larimer, to the Eastern Plains congressional district, CD4 (long established in case law as the “Eastern agricultural” district for the state). He highlighted Larimer’s status as an agricultural production center (the 10th largest in the state, with $128M in agricultural production, contrasted with Douglas County’s mere $16M) and close ties with ‘similar’ neighboring Weld County as strong evidence for Larimer’s continuing “community of interest” with CD4. Westfall also raised the “absolute inconsistency in application” of the standard of oil & gas exploration as a “community of interest” binding Douglas County (with “zero” oil & gas permits issued in 2010) to CD4 while ignoring existing oil & gas exploration efforts in Larimer County.

Questions put to Westfall by the Colorado Supreme Court justices raised the issue of competing ‘communities of interest’ (Chief Justice Bender asked,”why is it so unreasonable that beetlekill, and the universities” don’t establish a “community of interest” between Boulder and Larimer counties?)

Other questions addressed the ‘standard of review’ for the Colorado Supreme Court to apply in reviewing the lower court’s ruling (Justice Monica Marquez asked regarding standards of review, “was the trial court decision supported by the record?” and raised the issue of how to apply judicial standards vs. statutory standards, and discretion in applying standards).

Attorney Kelly Dunnaway, representing the Douglas County plaintiffs, added more information about the “communities of interest” applying to Douglas County – as perceived by the county government and majority of county residents. He highlighted the fact that transportation, jobs, water compacts, membership in regional government organizations (including RTD, the stadium district and DRCOG, the Denver Regional Council of Governments) and tax-sharing agreements all tied Douglas County to the Denver metro suburban area and NOT to the Eastern Plains. He pointed out the “manifestly arbitrary” nature of the trial court’s selection of evidence to put Douglas County in CD4 – noting that the trial court “invented communities of interest that don’t really exist in order to support the order.”

Questions to Dunnaway also addressed the issues of standards of review and findings of fact in the trial court’s order. Justice Rice asked if the standard of review is to “look for absence of information in the court order;” Chief Justice Bender asked if there was “insufficient data to support findings of fact” in the trial court ruling (Dunnaway: “absolutely”) or if there was “sufficient evidence to support the conclusion” reached by the trial court (Dunnaway: it was arbitrary to not consider Douglas County’s evidence and testimony, “ignoring wishes of residents in both [Douglas and Larimer] counties”). Justice Marquez noted that “we need to look at this map as a whole… there are always competing interests” (Dunnaway: the standard is whether the decision was “manifestly unreasonable” – noting that not only were Douglas and Larimer counties impacted but “1.4 Million people in Colorado were reassigned to different congressional districts under the ‘Moreno Map’ – over a third of Colorado residents, without ‘compelling reason,’ concluding that it is “manifestly unreasonable to disenfranchise 1.4 Million people”).

Grueskin opened by noting that the Colorado General Assembly had failed to pass congressional redistricting legislation 4 times in the past 30 years – resulting in 3 judicial redistricting decisions. He asserted that the Moreno Map created “appropriate districts to ensure fair representation.”

Grueskin’s opening statement drew an immediate question from Justice Marquez – noting that “part of this notion of effective representation hinges in some part on stability of districts, in part to establish that identity over time.” Each congressional district “conjures in my mind a certain image…”

Is it really appropriate every 10 years to just completely wipe the slate clean? How does your map honor minimizing disruption of districts?

Grueskin responded that although it’s appropriate to “recognize stability”… it doesn’t trump other criteria. He asserted that issues and “communities of interest” do change, and that the judicial process is an appropriate venue for assessing what is “put into evidence” in order to establish congressional districts, and argued that it is “counterintuitive… that districts are set in stone.”

Chief Justice Bender then asked Grueskin to address the main points of the opponents’ argument (1. disagreement on standard of review, and 2. taking Douglas and Larimer counties out of current districts was ‘unfair’) – “what are the facts supporting [Hyatt's] decision?”

Grueskin argued that “evidence linking Boulder and Larimer counties is strong” – citing “expert testimony” that the demographics of Boulder and Larimer counties are “virtually identical” while the demographics of Larimer and the Eastern Plains are “exceedingly different.” He noted many common employment industries in both counties, while noting that the percentage of residents actually employed in agriculture in Larimer is not large.

Grueskin noted that the “standard of review” issue is important, while maintaining that the issue of what is open to ‘de novo review’ is very limited.

Finally, the attorney for Aurora expressed support for the ‘Moreno Map’ in keeping Aurora wholly within a single congressional district, citing previous case law supporting keeping the city intact as a “community of interest” that had previously been trumped by other factors. He did note, however, the close ties of Aurora to Douglas and Elbert counties as a provider of water resources (which one might think would be an argument for maintaining Aurora in a “community of interest” with those counties).

Interestingly, neither side brought up the disputed notion of “competitiveness” as a basis for defining congressional district boundaries, cited by Judge Hyatt in support of his decision to split some counties (Douglas, Adams, Arapahoe, and Eagle) and not others. (Ruling at 43)

Bottom Line:

The Colorado Supreme Court’s decision in the appeal of the trial court’s congressional redistricting ruling is likely to come down to the ‘standards of review’ issue: was the trial court “manifestly unreasonable” in defining districts and did it “inconsistently apply” standards for ‘communities of interest’ in assigning counties to congressional districts?

The extent of judicial discretion exercised by Denver District Court Judge Robert Hyatt (in selecting evidence and applying statutory criteria) is also likely to factor in the court’s ruling. Thanks to the “Mary-Mandering” bill passed in the waning days of the 2010 legislative session, the judge could pick & choose criteria including “non-neutral” political factors according to his personal preference.

The General Assembly amended this statute in 2010 to repeal the statutory prohibition, adopted in 2004, against the use of political data such as party registration and so-called “political performance” data. (Ruling at 43)

Quo Vadis?

Although “reading the tea leaves” in such a complex and highly political case is fraught with danger, based on the arguments presented, questions posed by the Colorado Supreme Court justices, and in light of relevant case law precedent and Colorado statutory requirements (see below), Clear The Bench Colorado can discern some indicators on the eventual outcome:

Justices Bender and Rice (the remaining members of the “Mullarkey Majority”) will almost certainly vote to uphold the Moreno map (based on past ‘performance’ and questions asked)

Justices Eid and Boatright (the Colorado Supreme Court’s newest member) appeared skeptical that the trial court consistently applied standards and considered existing “communities of interest” and relevant case law; they appear disposed to reject the map

Justice Coats asked no questions during oral argument; he trends “conservative” and dissented in the judicial usurpation of legislative redistricting authority in the 2003 redistricting case (Salazar v. Davidson), and tends to support case law precedent (which would support maintaining traditional “communities of interest” & minimizing disruption). Leans reject.

Justice Hobbs appeared to accept proponents’ arguments that competing “communities of interest” had been considered by the trial court, and that on balance the evidence was sufficient to support Hyatt’s ruling; leans uphold.

Justice Marquez asked the most incisive and relevant questions at oral argument. Although it’s not clear how she might eventually decide, it is clear that she is possessed of a sharp legal mind and appears disposed to rule on the merits of the evidence and legal criteria applicable to the case.

CTBC predicts that the Colorado Supreme Court will almost certainly issue a split decision, most probably ending on a 4-3 vote (with Justice Marquez the most likely deciding vote). Based on available evidence, it’s impossible to predict which way it will go – but given the urgency of reaching a decision, we’ll see a ruling from the court next week.

(I) A good faith effort to achieve precise mathematical population equality between districts, justifying each variance, no matter how small, as required by the constitution of the United States. Each district shall consist of contiguous whole general election precincts. Districts shall not overlap.
(II) Compliance with the federal “Voting Rights Act of 1965″, in particular 42 U.S.C. sec. 1973; and

(b) May, without weight to any factor, utilize factors including but not limited to:

(I) The preservation of political subdivisions such as counties, cities, and towns. When county, city, or town boundaries are changed, adjustments, if any, in districts shall be as prescribed by law.
(II) The preservation of communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors;
(III) The compactness of each congressional district; and
(IV) The minimization of disruption of prior district lines.

Redistricting in Colorado (Ballotpedia site – although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles. As with any Wiki site – contributions come from a variety of sources and are frequently edited – proceed with some skepticism)

Today’s oral arguments before the Colorado Supreme Court, in which each side will have 30 minutes to make their case, will be recorded and posted online shortly after the hearing.

Arguments in the case are likely to revolve around the issue of whether the lower court properly adhered to Colorado constitutional and statutory guidelines governing redistricting, in particular the requirement to maintain county integrity where possible

Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts. Article V, Section 47(2)

and “preservation of political subdivisions such as counties, cities, and towns.” [C.R.S. 2-1-102(1)(b)]

Douglas County is also challenging Judge Hyatt’s assertion that Douglas County is more properly within a “community of interest” with the Eastern Plains (putting Castle Rock and Park Meadows shopping mall in the same district as Wray, Burlington, and Lamar). [Ed.an observer wryly noted that Douglas County doesn't even have a Burlington Coat Factory location, much less strong 'agricultural' ties to the plains]

Finally, petitioners are likely to challenge the notion of “competitiveness” as a basis for defining congressional district boundaries, cited by Judge Hyatt in support of his decision to split some counties (Douglas, Adams, Arapahoe, and Eagle) and not others. (Ruling at 43)

It must be noted that ”competitiveness” is a political argument, NOT a legal or constitutional argument (since there is neither a clear definition, nor constitutional requirement, for “competitiveness”), and as such has no place in a court ruling on the constitutional or legal merits of the maps.

Given the Colorado Supreme Court’s rejection of “competitiveness” as a factor taking precedent over clear constitutional and statutory guidelines in remanding state legislative district maps back to the Colorado Reapportionment Commission for corrections and revisions, it would be utterly inconsistent of the court to reject “competitiveness” as a primary factor in state legislative redistricting while upholding the notion for Colorado’s Congressional districts.

Redistricting in Colorado (Ballotpedia site – although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles. As with any Wiki site – contributions come from a variety of sources and are frequently edited – proceed with some skepticism)

Clear The Bench Coloradowill, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Opening briefs from the petitioners (appellants) are due to the Colorado Supreme Court on Wednesday, 23 November; response briefs are due to the court on Monday, 28 November (so much for a happy Thanksgiving weekend for the lawyers).

Next Thursday’s (1 December) oral arguments before the Colorado Supreme Court, in which each side will have 30 minutes to make their case, will be recorded and posted online shortly after the hearing.

Arguments in the case are likely to revolve around the issue of whether the lower court properly adhered to Colorado constitutional and statutory guidelines governing redistricting, in particular the requirement to maintain county integrity where possible

Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts. Article V, Section 47(2)

and “preservation of political subdivisions such as counties, cities, and towns.” [C.R.S. 2-1-102(1)(b)]

Douglas County is also challenging Judge Hyatt’s assertion that Douglas County is more properly within a “community of interest” with the Eastern Plains (putting Castle Rock and Park Meadows shopping mall in the same district as Wray, Burlington, and Lamar). [Ed.an observer wryly noted that Douglas County doesn't even have a Burlington Coat Factory location, much less strong 'agricultural' ties to the plains]

Finally, petitioners are likely to challenge the notion of “competitiveness” as a basis for defining congressional district boundaries, cited by Judge Hyatt in support of his decision to split some counties (Douglas, Adams, Arapahoe, and Eagle) and not others. (Ruling at 43)

It must be noted that ”competitiveness” is a political argument, NOT a legal or constitutional argument (since there is neither a clear definition, nor constitutional requirement, for “competitiveness”), and as such has no place in a court ruling on the constitutional or legal merits of the maps.

Given the Colorado Supreme Court’s rejection of “competitiveness” as a factor taking precedent over clear constitutional and statutory guidelines in remanding state legislative district maps back to the Colorado Reapportionment Commission for corrections and revisions, it would be utterly inconsistent of the court to reject “competitiveness” as a primary factor in state legislative redistricting while upholding the notion for Colorado’s Congressional districts.

Redistricting in Colorado (Ballotpedia site – although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles. As with any Wiki site – contributions come from a variety of sources and are frequently edited – proceed with some skepticism)

Clear The Bench Coloradowill, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Judge Hyatt’s ruling relies heavily on the “competitiveness” trope advanced by the Democrat plaintiffs as a consistent theme in both legal arguments and in the public-relations “framing” of the case in the media and public discussions.
(H/T Law Week Colorado for posting the court’s ruling online)

However, it must be noted that reliance on ”competitiveness” is a political argument, NOT a legal or constitutional argument (since there is neither a clear definition, nor constitutional requirement, for “competitiveness”), and as such has no place in a court ruling on the constitutional or legal merits of the maps.

The General Assembly amended this statute in 2010 to repeal the statutory prohibition, adopted in 2004, against the use of political data such as party registration and so-called “political performance” data. (Ruling at 43)

The 2010 legislative changes not only added “political” or “non-neutral” data to the list of factors which could be considered by the courts, but also removed legal guidance on prioritizing other factors, allowing the judge to pick and choose the remaining “discretionary” factors according to his personal preference – which he did:

Of the discretionary factors specifically listed in the statute, the court finds that no factor is more important than a district’s communities of interest. (Ruling at 43)

Why should the factor of “community of interest” – subject to shifting and subjective definition – trump any of the other more objective and quantifiable factors set forth in Colorado statute?

Statutory Criteria for Congressional Redistricting

Colorado law [C.R.S. 2-1-102(1)(b)] also sets forth a number of discretionary criteria that this Court may consider. In Congressional redistricting litigation, a court:

May, without weight to any factor, utilize factors that include but (are) not limited to:

(I) The preservation of political subdivisions such as counties, cities, and towns. When county, city or town boundaries are changed, adjustments, if any, in districts shall be preserved by law.
(II) The preservation of communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors;
(III) The compactness of each congressional district; and
(IV) The minimization of disruption of prior district lines

Judge Hyatt was also selective in choosing which testimony he cited to define “communities of interest”, further moving the ruling from the realm of legal review based on consistent standards (rule of law) into the area of arbitrary decisions by a single individual (rule by caprice) – the very antithesis of “what makes a good judge.”

Although the ultimate decision on Colorado’s Congressional District maps will be made by the Colorado Supreme Court (following the inevitable appeal), the district court’s decision has at a minimum framed the terms of the debate and set the conditions for the eventual outcome.

Redistricting in Colorado (Ballotpedia site – although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles. As with any Wiki site – contributions come from a variety of sources and are frequently edited – proceed with some skepticism)

Clear The Bench Coloradowill, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Sitting through the hearings and witness statements is admittedly dry stuff, with topics ranging from pine beetles and educational funding (which Democrat attorney Mark Grueskin claimed is what ties Boulder and Larimer counties together into a common “community of interest”) to water and agriculture issues (which Democrat attorney Mark Grueskin claimed were issues tying Douglas County and the Eastern Plains together into a common “community of interest”), and transportation funding (which witnesses from Douglas County – including County Commissioner Jill Repella and county lobbyist Ken Butler – advanced as evidence of common ties between Douglas and the other Denver Metro counties).

An interesting sideline to the overall Colorado Congressional Redistricting narrative was provided by the shifting fortunes of state senator Brandon Shaffer, running for Congress in CD4 in 2012, as district maps submitted by his own party first drew him out of, then later back within, the boundaries of the district (prompting him to submit his own map) – as chronicled in a series of article in the Colorado Peak Politics political website:

(NOTE: although residency within the district is not a requirement to run for Congress, it is certainly a political disadvantage to live outside the district one is seeking to represent)

The main themes of the Congressional Redistricting trial, however, were attempts by all parties to argue the constitutionality of the various map proposals. All parties acknowledged the federal and state constitutional requirements in general terms, but sought to emphasize different aspects in making their case. All sides attempted to define “communities of interest” via witness testimony (or refute the commonality of interests claimed by the other side during cross-examination).

For example, Democrat witnesses Michael Carrigan and Rico Munn advocated for combining Boulder and Larimer counties as a single “community of interest” based on the presence of Colorado’s two largest institutions of higher education in each (CU in Boulder, CSU in Fort Collins). GOP witness Dick Murphy countered that the cultural differences between the two schools – to say nothing of the two counties – diverged sharply between “liberal” CU/Boulder and more traditionally rural/conservative CSU/Fort Collins. (Ed.: Plus, how could a combined district deal with a candidate unable to take a stand on football matchups between the two universities, or alienating half the district?) GOP attorney Westfall also pointed out that both CU and CSU have multiple campuses around the state, and that multiple institutions of higher education exist around the state in different congressional districts, eliminating any unique claim to a “Higher Ed” community of interest centered around Boulder and Larimer counties.

The City of Aurora sought to be contained whole within a single congressional district (despite being split between counties, which enjoy a higher constitutional precedence for remaining intact than municipalities). Interestingly, both the modified Democrat and Republican maps appear to have accepted this premise.

The Colorado Latino Forum maps were roundly panned by all sides – the original maps (which paired Scott Tipton and Ed Perlmutter in a single district, ranging from Cortez to Lakewood) were criticized both by Republicans:

“When I saw that I thought, ‘They can’t possibly be serious,’ ” said state Sen. Greg Brophy, R-Wray. “We had public testimony earlier this year against this kind of proposal.”

as well as by Democrats (even after modifications to the original maps):

“When a map is driven by the issue of race, whatever the race, it becomes suspect.” (Democrat attorney Mark Grueskin)

The Democrat argument sought to create or define new “communities of interest” but most prominently promoted the principle of “competitiveness” as a basis for determining district boundaries. However, it must be noted that reliance on ”competitiveness” is a political argument, NOT a legal or constitutional argument (since there is neither a clear definition, nor constitutional requirement, for “competitiveness”) – even notwithstanding the “Mary-mandering” legislation passed at the close of the 2010 legislative session in what has been confirmed by events as a preparatory move in the plan to send the question of redistricting to the courts all along (instead of being resolved in the legislature, as mandated by the Colorado Constitution, Article V Section 44,

Text of Section 44:Representatives in Congress.
The general assembly shall divide the state into as many congressional districts as there are representatives in congress apportioned to the state by the congress of United States for the election of one representative to congress for each district. When a new apportionment shall be made by congress, the general assembly shall divide the state into congressional districts accordingly.

Judge Hyatt, who has a reputation as being hardworking, independent-minded and well-versed in the law, is not expected to take long to reach a decision – and may have already reached some conclusions on the merits of the arguments advanced during trial, as indicated by an aside uttered casually during the second week of the trial, stating (and this may be more a paraphrase than a precise quote)
“Is there anything being presented here as testimony that is likely to influence my decision?”

In any event, all parties have indicated that whatever the outcome, the case is almost certain to be appealed to – and ultimately decided by – the Colorado Supreme Court.

Redistricting in Colorado (Ballotpedia site – although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles. As with any Wiki site – contributions come from a variety of sources and are frequently edited – proceed with some skepticism)

Clear The Bench Coloradowill, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Although the filing of amicus curiae briefs to intervene in court cases of interest are not uncommon, certain aspects make THIS filing rather unusual (and rather ironic).

First, the fact that Congressional redistricting in Colorado has ended up before the courts at all, rather than being carried out by the legislature, which is unambiguously assigned the responsibility under the Colorado Constitution, Article V Section 44,

Text of Section 44:Representatives in Congress.
The general assembly shall divide the state into as many congressional districts as there are representatives in congress apportioned to the state by the congress of United States for the election of one representative to congress for each district. When a new apportionment shall be made by congress, the general assembly shall divide the state into congressional districts accordingly.

Second, Brandon Shaffer’s interest in the outcome (along with the shape of the district maps) appears to be directly linked to his personal political aspirations; as the Colorado Peak Politics article points out,

Shaffer’s brief is a pretty brazen move, making Shaffer the only candidate or incumbent to file a motion with the court. Candidates and incumbents are generally expected to stay away from the process, since they have a very clear vested interest in the outcome.

Shaffer’s redistricting amicus brief begins by admitting, with complete irony and total lack of self-consciousness, the failure of the legislature (under his leadership) to do its job:

the Sixty-eighth General Assembly adjourned sine die on May 11, 2011 without discharging its constitutional mandate.

Shaffer’s plan then proceeds to advocate splitting Colorado’s Eastern Plains – defined as a distinct “community of interest” in the foundational and governing case law, Carstens v. Lamm (1982) – in order to consolidate a district around his “home base” (the Longmont-Fort Collins-Greeley triangle). Curiously (or perhaps, not-so-curiously), Shaffer’s brief ONLY addresses the boundaries of the 4th CD, and advances no argument on the constitutionality of any other districts.

This intentional politicization of the judiciary, already adversely implicated by involvement in what is expressly mandated as a legislative branch responsibility, in order to advance one’s personal political advancement, is deeply troubling. It is corrosive to our institutions, and undermines the sanctity of the rule of law and public confidence in our courts.

In any event, the case (combined cases, actually) bears careful watching as it plays out in court, scheduled to begin trial (open to the public) on 17 October.

Redistricting in Colorado (Ballotpedia site – although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles. As with any Wiki site – contributions come from a variety of sources and are frequently edited – proceed with some skepticism)

Clear The Bench Coloradowill, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

…under the GOP map, Baca County on the southeastern border is the only entire county to moved into another district. …

The GOP also said the map “moves the “absolute fewest number of Coloradans” possible in order to accomodate (sic) population shifts in the last decade, according to court records.

On Monday, the Democrats filed their map with the court – which “proposed dramatic changes to Colorado’s congressional boundaries.” As noted in the Denver Post’s article, the most radical changes would be to the 6th Congressional District, currently represented by Republican Mike Coffman, moving the district significantly northward to include all of Aurora, dividing the western half of both Arapahoe and Adams counties and extending into Weld County, and moving Douglas and Elbert counties to the 4th Congressional District (currently represented by freshman Republican Cory Gardner), which would lose most of Larimer County to the 2nd Congressional District (represented by Democrat Jared Polis).

The 7th Congressional District (represented by Democrat Ed Perlmutter) would shift west to include the north-metro suburbs in western Adams County (which would thus be split between three different congressional districts) and the west-metro suburbs of northeastern Jefferson County (which would be split between two congressional districts, with the remainder in the 2nd District along with Boulder).

Redistricting in Colorado (Ballotpedia site – although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles. As with any Wiki site – contributions come from a variety of sources and are frequently edited – proceed with some skepticism)

Clear The Bench Coloradowill, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

For the second consecutive decade, Colorado is treated to the sad spectacle of the state Senate majority blocking any possibility of compromise legislation and intentionally sending the issue to the courts. The plan has apparently been in the works for at least a year – with the 2010 session closing out with the “Mary-mandering” bill (HB1408) enabling the courts to consider “non-neutral factors” such as partisan affiliation when evaluating redistricting plans.

It’s truly unfortunate that certain elements of the Democrat party leadership apparently pursued this outcome from the start – abdicating their constitutional responsibility to pass a redistricting law.

However, they may have overplayed their hand this time around; the combination of constitutional and statutory guidelines, clear case law and legal precedent, and (last not least) increased attention to the role of the judicial branch – promoting transparency and accountability to “keep ‘em honest” – make it much more difficult (albeit not impossible) for the courts to pull another “mullarkey” power grab.

Additionally, the testimony of numerous Citizens from across Colorado – although falling short of convincing the legislature (particularly the state Senate) to do its job and at least attempt to pass redistricting legislation – will be of value as the courts consider the various constitutional and legal requirements for determining Congressional district boundaries.

In any event, the case (combined cases, actually) bears careful watching as it plays out in court.

Redistricting in Colorado (Ballotpedia site – although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles. As with any Wiki site – contributions come from a variety of sources and are frequently edited – proceed with some skepticism)

Clear The Bench Coloradowill, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.